12 MAY 15, 2012
Smoke Signals
Author discusses book about development of Indian law
By Ron Karten
Smoke SitfnilM ttaff writer
PORTLAND About 350 people
almost filled Smith Memorial ball
room at Portland State University
on Friday, May 4, to hear lawyer
Walter Echo-Hawk talk about his
new book, "In the Courts of the
Conqueror," and the challenges of
fighting the long, uphill battle for
Native rights.
Echo-Hawk was a staff attorney
for the Native American Rights
Fund from 1973 through 2009.
With modest good humor, this
man who has tried 90 cases before
the U.S. Supreme Court disarmed
the audience, opening his talk with
the observation, "If I had known
this was going to be such a crowd,
I would have worn my girdle."
"I have had the very best clients
in the entire world," he said, "and
have represented the living and
the dead as well." With regard to
the dead, he was referring to his
defense of Native American Graves
Protection and Repatriation Act
legislation for the Pawnee Nation.
Across the brief span of 45 min
utes, Echo-Hawk covered the wide
range of his experiences, provided
a succinct history of Indian law,
described why the legal winds may
now be at the backs of American
Natives and insisted that the com
ing generation will "complete the
American Revolution."
"This is not just about me," he
said, but about a whole generation
or two generations who have fought
in the courts, literally creating
the body of Tribal law. "My work
started with the Tribal sovereignty
o V
Photo by Stuart Isett
Echo-Hawk
movement beginning in the 1970s."
It continued through the rise of
modern Indian Nations, "one of
the great American social move
ments, rivaling the civil rights and
women's movements."
He fought to bring sweat lodges
into penitentiaries and worked
with "profound religious leaders"
representing the Native American
Church to protect the spiritual use
of peyote.
"The peyote religion is 10,000
years old," he said.
He took aspects of that case to
the Supreme Court twice, with
the court ultimately giving states
the right to decide what religious
practices to allow. The decision was
a loss for Native Americans and a
win for mainstream religions.
He fought for Klamath water
rights seeking to quantify how
much water it takes to support
fishing rights and the plants im
portant to Native culture, and to
make sure the Klamath people had
that amount.
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WERNATIVE
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Walter R. Echo-Hawk
Foreword by Pjlficil N. limcfttfc '
"Judges in Oregon are awarding
all of the claims of Native American
Tribes', recognizing the needs for
water," he said. "It's a huge step for
the courts to take. It's real healthy
and a good sign."
In fact, he said that until the
Rehnquist Court took over in 1986,
Native Americans had "a good, win
ning track record. It seemed like we
couldn't lose a case."
Since then, however, the Supreme
Court has been on an anti-Indian
trend to trim back hard-won Native
American rights. "In that period,"
he said, "Indian nations have lost
80 to 88 percent of the cases that
come before the court. Prisoners
fare better at the Supreme Court
than Native Americans.
"This has led many of our legal
scholars and Tribal leaders to ask,
'Is federal Indian law dead?' That is
what led me to think about writing
this book: to explore federal Indian
law on a deeper level. It took four
years, and is a study of the dark
side of the law affecting Native
Americans.
"These essays are attempts to
understand the forces at work. I
picked 10 very unjust cases that
are still the law today, and then
looked for threads of lessons to be
learned, and pathways to reforming
and strengthening the law. It has
ruined my social life and almost
my marriage, but these are very
gripping tales of epic encounters of
two societies. These tales show how
the West was won in the American
courts."
The findings detailed in the book,
he said, are threefold.
There has been a heavy use of
race racism in these deci
sions. There has been support for "un
fettered colonialism - rejected as
policy throughout the world now,"
to sustain the many legal systems
in place.
There has been a heavy use of
"legal fictions, assumed to be
fact," underpinning the decisions.
He gave as an example the legal
fiction that Indians are inferior.
"Every now and then, the court
will use a legal fiction for good pur
poses," he said, "but they are
also used in cases where the
results are unjust."
"There is a need to
strengthen Indian law," he
said. "Can it be done? Yes,
but it will take a genera
tion." He presented five reasons he
remains an optimist:
The Supreme Court, he
said, is rowing against the
tide. 'The other two branch
es of government want to
support Native rights."
Indian nations are poised
to defend Native rights.
Justice costs money, but
Tribal communities have
prospered from gaming and
they now have the means to
strengthen Indian law.
With more Indians attend
ing college, Tribes have more
"human resources" now.
The world has changed,
he said. "We are no longer an
abject British colony." There is an
increased appreciation of Native
life, he said, and the international
community has repudiated colo
nialism, realizing that it is "hard
on people and hard on the land."
He cited the 2007 U.N. Declara
tion on the Rights of Indigenous
Peoples that set forth "a com
prehensive set of human rights
standards" that four nations at the
time refused to ratify: the United
States, Canada, New Zealand and
Australia. "All four," he said, "have
now reversed their positions." The
Obama administration reversed
the U.S. position in 2010.
"We will complete the Ameri
can Revolution, founded on these
human rights precepts," he said.
"Each time we are detoured, our
core values have helped us self
correct. "I'm very optimistic. Indian edu
cation on this campus will play a
critical role in what may be the
greatest adventure that Native
Americans have ever gone on. We
have to gird ourselves for this chal
lenge. "There are 34 Tribal colleges
that are not funded to the level
they need to be funded. Our public
school systems need to be culturally
appropriate."
Asked in a question-and-answer
session how he deals with all the
setbacks, he said, "I was taught
by my mentors standing on the
shoulders of giants and learned
early on that attorneys don't cry.
It undercuts the trust of your cli
ents. We have to take a warrior's
stance. We have to be courageous
and never falter."
Echo-Hawk was introduced by
Robert Miller (Eastern Shoshone),
who is a law professor at Lewis &
Clark College, the chief justice for
the Grand Ronde Court of Appeals
and the author of two books on
the Native experience, and is now
finishing a third, "Battlefields and
Burial Grounds "
"Walter Echo-Hawk is a legend
in Indian Country," he said. "The
NAGPRA law has his handprints
all over it." B